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20/20 Hindsight and Whistleblowing Settlements

Hindsight can mean regretting whistleblowing, or its consequences. Silence and departures impose intangible costs too. Whistleblower victims can become examples to chill others in the organization from challenging the status quo, however crazy or even corrupt it may be. Some whistleblowers may try to leave a hostile work environment only to be misled by oral promises concerning a settlement agreement, or litigation's consequences. Thus, other employees caught in illegal activity (perhaps even as a result of information brought to authorities's attention by a whistleblower) may well have better career prospects than law-abiding conscientious whistleblowers, who failed to endure or adequately anticipate the sudden job change for future employers.

Settlements are favored

Settlements have their place. Courts have always encouraged them: the vast majority of cases settle. settlements save time and resources and trouble, for both employee and manager. Some employees may even receive what they were fighting for, especially after recent pro-union employee case law at the OSC and MSPB. Settlements also can keep the employee's name from being splashed over public records for examination by future employers and creditors.

Involuntary settlements are the problem--sanctioning the whistleblower's departure for token compensation and attorney fees after months in an obviously hostile work environment. While courts always supervise criminal guilty pleas to ensure voluntariness and knowledge of their terms, especially those affecting constitutional rights, the MSPB's AJs rarely allow even disputed whistleblower settlements a hearing. They presume all settlements voluntary, which may seem like willful blindness, although the Federal Circuit in 2003 reversed one of those rubberstamp decisions where an employee was mislead concerning deletion of unfavorable material (the government kept it, which one judge on that 3-judge panel and appeals judges in other cases thought OK).

Settlements help the Board deal with its heavy case load, but don't make it fair. In nonwhistleblower cases, the Heining decision allows setting aside these contracts where the agency breaks its agreement or uses misrepresentations or coercion to obtain the employee's signature. It is, however, almost never followed in the whistleblower context. The MSPB and Federal Circuit often claim they lack jurisdiction where whistleblowing is involved, or fail to recognize agency skullduggery in offering hush money or hardball tactics in creating a hostile working environment. By contrast, the Department of Labor and EEOC both consider agreements requiring silence concerning retaliation or other illegal activities unacceptable invitations not to comply with the laws, per se violations.

Nonenforceablility: Promises as only hot air

Nonenforceability is another post-settlement nasty surprise. If the employer or agency representative orally promises something, like a particular job placement down the road, yet the contract does not say the same thing, the by-now former employee may well not get it. The MSPB and Federal Circuit almost never enforce oral promises in the whistleblower context. Agencies may also choose not to honor their nominal contract obligations if the risk of enforcement seems minimal or only obtained at high cost to the employee. Plus, placement or reference provisions are insufficient in themselves. Retaliatory references might well not be legally actionable; placement not worthwhile for a short time or at a distant location. In other courts or in nonwhistleblower cases, deceit or misrepresentations may be a grounds for vacating a contract (after the party seeking to upset the contract meets a heavy burden of proof). The MSPB has never voided a settlement obtained through fraud or agency skullduggery in a published decision. Nor has it ever bound an agency to keep promises made by the employee's attorney, unless such are recorded recorded in open court. If an employment attorney tells the client to trust the government representative's promises, the attorney may well not be around, nor at all supportive, when the promise is clearly broken.

Attorney Malpractice

No rational person wants a potential attorney malpractice lawsuit instead of a job. They are very difficult and expensive to try and win. Even finding an attorney willing to handle such suits is tough, since some attorneys misrepresent themselves to get cases. Plus, courts require legal malpractice plaintiffs (unlike medical malpractice plaintiffs, for example) to prove they would have won (nearly impossible for a whistleblower, given the OSC's and MSPB's miniscule number of employee victories) to even maintain such a lawsuit. Furthermore, a jobless person feeling angry, victimized by a prior attorney, and distrustful because of the manager's earlier reprisals may well be both an unattractive employment candidate and an unattractive prospective client for any attorney.

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